“Harassment” and “discrimination” are terms that many people use interchangeably. Is there a legal difference between the two? Yes, there is a significant difference. But what about “bullying?” How does California employment law define and deal with bullying? This article will define harassment, discrimination, and bullying and explain how these three concepts play out in California’s workplaces.

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The Definition of Harassment, Discrimination & Bullying

Harassment is when an employee is treated poorly (name calling or unwanted touching) because of a protected characteristic or activity. Discrimination is when an employer takes an adverse action against an employee (termination or demotion) because of a protected characteristic or activity. Bullying is when an employee is treated poorly, but the bad treatment is not because of a protected characteristic or activity.

An example will make these distinctions clear. Jane is an employee for Acme. Jane is discriminated against if she is fired because she is a woman. She is harassed if John, her boss, calls her a derogatory name because she is a woman. She is bullied if John makes fun of Jane for being a Dodger’s fan. Here, being a woman is a protected characteristic in California employment law (“sex”). Being a Dodger’s fan is not.

Harassment and discrimination are unlawful. Bullying, on the other hand, it not illegal. Currently, there is no California or Federal employment law that addresses workplace bullying. However, if the bullying happens because of the victim’s religion, race, sex, disability, or color, etc., it becomes “harassment” under CA’s employment law. In that case, the employer is legally required to prevent it from occurring. If they don’t, the employee may file a lawsuit.

The CA Supreme Court on the Difference

In the case of Reno v. Baird, the California Supreme Court highlighted the distinction between harassment and discrimination. It said:

The court noted that harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job…. Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. While harassment is not a type of conduct necessary to personnel management, making decisions is a type of conduct essential to personnel management. (emphasis added)

A California employer cannot hold certain traits or characteristics against an employee. California law has specifically outlined what an employer may not use against employees. These protected characteristics include:

Who is Liable for This Bad Behavior?

Another subtle, but important difference between discrimination and harassment cases is who may be liable. In discrimination cases, only the company-employer is liable. In a discrimination case the manager making the discriminatory decision will not be personally liable because the harm stems from the employer.

But in harassment cases the person who does the harassing may be personally liable. The harasser can be sued regardless of whether the employer knew or should have known the harassment was occurring. While it is the duty of the employer to provide a safe work environment, as we all know, people find ways to hide what they want to hide.

Any Exceptions to these Rules?

Generally, the only times in which the characteristics listed above can legally be used against a potential or current employee is when the employer can show that the characteristic is required for the job. This is called a bona fied occupational qualification. For example, if someone with a heart problem applied to be a firefighter. Even if that person could show that they can perform the essential functions of the job with an accommodation, the physical requirements of a firefighter job, mixed with the potential physical limitations of a heart condition, could endanger the lives of others. It is highly likely that the law would allow discrimination in this case.

Why Isn’t Bullying Illegal Like Harassment?

The answer is that “its complicated.” Essentially, the law is not perfect. It cannot regulate all bad behavior. The problem with bullying is that the definition is so wide and broad that if you made it illegal you would have an explosion of lawsuits. Since there already enough lawsuits in this world, the California legislature is unlikely to pass a law that would result in widespread abuse of the legal system.

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